Lawyer's attorney: Macomb County prosecutor treating him unfairly

By
Jameson Cook, The Macomb Daily

Thursday, December 13, 2012

The lawyer for a well-known criminal defense attorney charged with “super drunk” driving said Macomb County Prosecutor Eric Smith is treating his client unfavorably because the case has generated publicity.

“This is a ‘policy’ case because you’re involved,” attorney John Talpos told The Macomb Daily in regards to his client, attorney Joe Kosmala. “I think the visibility factor is a part of it.”

He said Smith won’t offer Kosmala a chance to plead to a lower offense.

Smith’s policy is to not offer plea deals in super drunk driving cases, although he can approve a “deviation” request to do so, according to a local criminal defense attorney who handles many such cases.

Smith and assistant prosecutor Paul Bukowski, who has been handling the case, did not respond to requests for comment.

Kosmala is a longtime lawyer who has represented clients in many high-profile cases. He was arrested July 20, 2011, after he drove his car off the pavement into a construction area on North River Road at northbound Gratiot Avenue in Mount Clemens. He is charged under the “super drunk” law for registering blood-alcohol content of more than .17 percent by registering .23 percent.

He faces jury selection March 15 for a trial in front of Judge Carrie Fuca in 41B District Court in Clinton Township.

He recently lost his appeal of Fuca’s decision to maintain the charge against him. Macomb County Circuit Court Judge James Biernat upheld Fuca.

Talpos accused Macomb County Sheriff’s deputies of “losing” video and audio recordings of deputies responding to the arrest scene, and other video, including of Kosmala for 15 minutes prior to his Breathalyzer test. Talpos argued the video would show Kosmala’s conduct was “consistent with the defendant not being intoxicated.”

Bukowski earlier this year said the video was erased as part of the sheriff’s office routine procedure of recycling video. Deputies are not required to video record suspects, he noted.

Talpos admitted Kosmala drank alcohol but contended the test exaggerated his intoxication level by measuring alcohol fumes from Kosmala’s stomach instead of his lungs because he may have burped.

“Stomach gases escaped,” Talpos said. “He took a bad breath test.”

Talpos said police also failed to provide the “calibration and maintenance logs” for the Breathylzer test.

Judge Biernat says in his written opinion that Talpos failed to show the lack of video prejudices his client.

The judge says just because Kosmala may act sober in video doesn’t mean he wasn’t drunk.

“Defendants demeanor – assuming … recordings would have showed he did not slur his speech but could speak coherently, had no difficulty controlling his physical movements and/or did not show any other signs of intoxication – would not preclude a conviction of the charged crime,” Biernat says.

Deputies’ comments that Kosmala appeared “flush and smelled of intoxicants” could not be refuted by video, he adds.

Biernat notes video and audio recording exists of Kosmala beign transported to jail and video recording exists of him in the jail that can be used.

“Defendant also may avail himself of the opportunity of testifying,” Biernat says.

Judge Diana Druzinski recused herself from the case because Kosmala was assigned a capital criminal case in her court.

Kosmala has also served as a county commissioner and Fraser school board.